People For the American Way

A Bush Judge on the DC Circuit Defends the Ideology of the Lochner Era

Last Friday, a three-judge panel of the DC Circuit released an unexceptional decision in an unexceptional case about congressional authority to regulate interstate commerce. It involved a constitutional challenge to a 2006 act of Congress that had removed an exemption of certain buyers of raw milk from a general rule requiring milk processors and distributors to contribute to a fund designed to stabilize milk prices. Courts recognized many decades ago congressional authority to regulate the milk market.

The unanimous panel easily disposed of the constitutional arguments against the law. However, the concurring opinion by Judge Janice Rogers Brown, joined by Reagan nominee Judge David Sentelle, was anything but unexceptional. One of the most extreme of George W. Bush’s ideological nominees to the federal bench, she issued a clarion call to reverse decades of settled law and cripple Congress’s constitutional ability to tackle national problems.

In a concurrence loaded with red meat for the political right wing, Judge Brown defended the ideology of the discredited Lochner era, when vitally necessary economic legislation was regularly struck down by an ideological Supreme Court dedicated to limiting the federal and state governments’ ability to address the horrific consequences of unbridled capitalism.

The [plaintiffs] Hettingas’ sense of ill-usage is understandable. So is their consternation at being confronted with the gap between the rhetoric of free markets and the reality of ubiquitous regulation. The [case] reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to adopt whatever economic policy may reasonably be deemed to promote public welfare. Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the "democratic process."

…

Civil society, once it grows addicted to redistribution, changes its character and comes to require the state to feed its habit. The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of liberty deserves more respect – a lot more. [internal quotations and citations removed]

Another judge on the panel, Judge Thomas Griffith, issued his own brief concurrence solely to decry his colleague’s inappropriately political remarks expressing personal views on an entire field of constitutional jurisprudence that no party was challenging.

When she was confirmed in 2005, over the objections of People For the American Way and numerous others, we stated:

Justice Brown has tried to use her position on California’s Supreme Court to rewrite the law to fit her extreme ideology. She believes we would be better off if we returned to a time when protections like the minimum wage, food safety standards, and Social Security and Medicare were ruled unconstitutional—never mind what voters and elected officials think. She equates affordable housing regulations with theft. She argues that much corporate behavior can only be regulated if companies agree that it’s in their best interest. She calls court decisions upholding the New Deal "our own socialist revolution." Her record on civil rights and equal opportunity offends the very notion of justice.

As we said then and as we say now, it is vitally important who gets nominated and confirmed to the federal bench.